1

Counsel for Plaintiff is advised, for future reference, that pleadings filed in this Court must be

double-spaced. See D.C.COLO.LCivR 10.1E. Filed papers should also bear page numbers. 

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Senior Judge Zita Leeson Weinshienk

Civil Action No. 10-cv-01327-ZLW-CBS

CLARA RAQUEL EPSTEIN, M.D.,

Plaintiff,

v.

THE OHIO STATE UNIVERSITY,

OHIO STATE BOARD OF TRUSTEES,

OHIO STATE UNIVERSITY MEDICAL CENTER,

OHIO STATE UNIVERSITY MEDICAL CENTER SERVICES BOARD,

OHIO STATE COLLEGE OF MEDICINE,

CAROLE MILLER, M.D., individually,

ANDREW THOMAS, M.D., individually, and

JOHN OGDEN, M.D., individually,

Defendants.

ORDER

The matter before the Court is Defendants’ Motion To Dismiss (Doc. No. 5). The

Court has reviewed carefully the moving and responding papers and the applicable

legal authority. 

I. Plaintiff’s Claims

Plaintiff, who currently is a Colorado resident, filed this action on June 9, 2010,1

asserting that while employed as a medical resident at the Ohio State University

Medical Center (OSU) in Columbus, Ohio from 2003 to 2007, she was discriminated

against on the basis of her gender (female), religion (Jewish), national origin (MexicanCase: 2:10-cv-00895-GCS-MRA Doc #: 31 Filed: 10/04/10 Page: 1 of 11 PAGEID #: <pageID>
2

Complaint ¶ 98.

3

Although Plaintiff includes an age discrimination allegation under her Title VII disparate treatment

claim, Title VII does not address age discrimination. See 42 U.S.C. § 2000e-2. 

2

American), and age (46 at the time this action was filed). Plaintiff also alleges that she

was sexually harassed and subjected to a hostile work environment while at OSU, and

that she was wrongfully discharged from OSU “through constructive termination.”2

Plaintiff further alleges that, after she moved to Colorado following her discharge from

OSU, Defendant Andrew Thomas, M.D. made false and slanderous remarks about her

to the company performing her background check as part of her medical credentialing

process in Colorado, and that Defendant Thomas and unidentified OSU staff members,

or other persons affiliated with OSU, made false statements to the Colorado Board of

Medical Examiners regarding Plaintiff’s board certification. 

Plaintiff asserts nine claims for relief, for: (1) Discrimination and Disparate

Treatment - Title VII, against all Defendants,3

 (2) Sexual Harassment - Title VII, against

Defendants OSU and John Ogden, M.D., (3) Wrongful Termination - Hostile Work

Environment - Title VII, against all Defendants, (4) Retaliation - Title VII, against all

Defendants, (5) Wrongful Discharge - Constructive Termination - Tort Claim, against

Defendants OSU and Affiliates, (6) Slander - Tort Claim, against Dr. Miller and Dr.

Thomas, (7) Intentional Interference With Advantageous Relations - Tort Claim, against

all Defendants except Dr. Ogden, (8) Outrageous Conduct - Tort Claim, against Dr.

Miller and Dr. Thomas, and (9) Negligent Infliction of Emotional Distress - Tort Claim,

against Dr. Miller and Dr. Thomas. 

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4

Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995). 

5

TH Agriculture & Nutrition, LLC v. ACE European Group Ltd., 488 F.3d 1282, 1286 (10th Cir.

2007) 

6

Id.

7

There is no indication that the “continuous and systematic” contacts required to establish general

personal jurisdiction exist in this case. See Helicopteros Nacionales de Colombia v. Hall, 444 U.S. 408,

415 (1984).

8

TH Agriculture, 488 F.3d at 1287. 

3

Defendants move to dismiss this action without prejudice for lack of personal

jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2) or for improper venue pursuant to Fed.

R. Civ. P. 12(b)(3). Defendants move, in the alternative, for an order transferring this

case to the United States District Court for the Southern District of Ohio, Eastern

Division. 

II. Analysis

A. Personal Jurisdiction

The plaintiff has the burden of proving that personal jurisdiction exists.4

However, where, as here, the motion to dismiss based on lack of personal jurisdiction is

determined without an evidentiary hearing, the plaintiff need only make a prima facie

showing of personal jurisdiction.5

 In deciding whether the plaintiff has made such a

showing, the Court resolves all factual disputes in the plaintiff’s favor.6

The determination of specific personal jurisdiction7 requires a two-step inquiry. 

First, the Court asks whether the nonresident defendant has minimum contacts with the

forum state such that he or she should reasonably anticipate being haled into court

there.8 “A defendant may reasonably anticipate being subject to suit in the forum state if

the defendant has purposefully directed his activities at residents of the forum, and the

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9

Id. (internal quotations and citations omitted).

10OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1092 (10th Cir. 1998) (internal

citation omitted).

11Id.

12Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (internal quotations omitted).

13TH Agriculture, 488 F.3d at 1287 (internal quotations and citation omitted).

14Id. (citation omitted).

4

litigation results from activities that arise out of or relate to those activities.”9 The

defendant must have engaged in activities that create a “substantial connection to the

forum state. Thus, courts have been unwilling to allow states to assert personal

jurisdiction over foreign defendants where the defendant's presence in the forum arose

from the unilateral acts of someone other than the defendant.”10 “The court must

examine “the quantity and quality of Defendants' contacts with [the forum state] to

determine whether the district court's assertion of personal jurisdiction over Defendants

comports with due process,”11 and “random, fortuitous, or attenuated contacts” are

insufficient.12

Second, if there are minimum contacts, then the Court inquires as to whether the

“exercise of personal jurisdiction offends traditional notions of fair play and substantial

justice.”13 “This question turns on whether the exercise of personal jurisdiction is

‘reasonable’ under the circumstances of a given case.”14 The court assesses

reasonableness by weighing the following five factors: (1) the burden on the defendant,

(2) the forum state's interest in resolving the dispute, (3) the plaintiff's interest in

receiving convenient and effective relief, (4) the interstate judicial system's interest in

obtaining the most efficient resolution of controversies, and (5) the shared interest of the

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15Burger King, 471 U.S. at 477.

16TH Agriculture, 488 F.3d at 1292; OMI Holdings, 149 F.3d at 1092.

17It appears that the allegations in paragraph 74 are made in support of Plaintiff’s Retaliation claim

(Claim 4) only. 

5

several states in furthering fundamental substantive social policies.15 If the minimum

contacts are weak under the first step, then the defendant does not need to make a

strong showing of unreasonableness under the second step.16

It appears to be undisputed that all of the Defendants in this case reside or are

located in Ohio. Further, the vast majority of factual allegations in the Complaint pertain

to alleged events which occurred in Ohio. Indeed, out of a total of 77 paragraphs of

factual allegations in the Complaint, only three contain allegations having any

relationship whatsoever to the state of Colorado. Those paragraphs state:

74. On June 16, 2008, Dr. Epstein [Plaintiff] was notified

by the Colorado Board of Medical Examiners that an

anonymous party had alleged that she was falsely

representing herself as a board certified

neurosurgeon residing in the State of Colorado. The

Board conducted an investigation and on March 24,

2009, determined that the allegations were unfounded

and dismissed any further administrative action

against Dr. Epstein. Upon information and belief the

anonymous party was affiliated with the OSU Medical

Center staff.17

75. Upon information and belief, on April 23, 2009, during

the course of Dr. Epstein’s credentialing process in

Colorado, Dr. Thomas was contacted by R.T. Welter

and Associates, Inc., as part of a background

investigation. Dr. Thomas made false and slanderous

remarks regarding Dr. Epstein and represented to

R.T. Welter and Associates, Inc. that Dr. Epstein was

not a neurosurgeon, should not be 

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18It appears that the allegations in paragraphs 75 are made in support of Plaintiff’s Retaliation

claim (Claim 4) and Slander claim (Claim 6) only.

19It appears that the allegations in paragraphs 76 are made in support of Plaintiff’s Retaliation

claim (Claim 4), Slander claim (Claim 6), and claim for “Intentional interference With Advantageous

Relations” (Claim 7) only.

20Affidavit of Clara Raquel Epstein, M.D. (Doc. No. 17-1) ¶ 4. The Court agrees with Defendants

that the cited affidavit testimony constitutes hearsay under Fed. R. Evid. 802; however, there is authority

indicating that hearsay evidence may be considered on a Rule 12(b)(2) motion. See Dairy Health

Products, Inc. v. IBA, Inc., 2008 WL 345846 (D. Utah Feb. 6, 2008) (citing Theunissen v. Matthews, 935

F.2d 1454 (6th Cir. 1991)).

21See Plaintiff’s Response (Doc. No. 17) at 4-5.

22465 U.S. 783 (1984).

6

using the title of neurosurgeon, and that her

license to practice medicine was restricted.18

76. Upon information and belief, Dr. Thomas and/or other

staff members at OSU further falsely represented to

the Colorado Board of Medical Examiners that Dr.

Epstein was not board certified and did not specialize

in neurosurgery. In fact, Dr. Epstein was certified by

the American Board of Clinical Neurological Surgery

on March 28, 2008.19

 

Additionally, Plaintiff states in her affidavit that she was advised “by R.T. Welter &

Associates” that the staff person who spoke with Defendant Thomas identified herself

as being from R.T. Welter in Colorado, and that this person advised Defendant Thomas

that she was assisting Plaintiff in becoming credentialed exclusively at several local

Colorado hospitals.20 Plaintiff does not allege that anyone other than Defendant

Thomas and the unidentified person “affiliated with the OSU Medical Center staff”

engaged in any conduct relating to the state of Colorado. 

Plaintiff argues that because Dr. Thomas allegedly knew that Plaintiff resided in

Colorado and that it was foreseeable that his allegedly defamatory statements would

result in injury to Plaintiff in Colorado,21 the cases of Calder v. Jones,

22 Dudnikov v.

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23514 F.3d 1063 (10th Cir. 2008).

242010 WL 3175979 (5th Cir. Aug. 12, 2010).

25Plaintiff’s Response (Doc. No. 17) at 5.

26See Dudnikov, 514 F.3d at 1072; see also Sunlight Saunas, Inc. v. Sundance, Sauna, Inc., 427

F. Supp.2d 1011, 1020 (D. Kan. 2006) (citing Calder, 465 U.S. at 788-90).

27Plaintiff has, further, failed to argue or establish minimum contacts on the part of OSU based

upon principles of agency.

7

Chalk & Vermilion Fine Arts, Inc.,

23 and Clemens v. McNamee,24 “all dictate that Dr.

Thomas and OSU have purposely directed tortious activity within Colorado.”25 In

Calder, which was applied by Dudnikov and Clemens, the United States Supreme Court

set forth the “effects test,” under which a court may exercise personal jurisdiction over a

nonresident defendant where the defendant expressly aimed an intentional act at the

forum state with the knowledge that the brunt of the injury would be felt in the forum

state.26 Here, Plaintiff has made the minimal prima facie showing that Defendant

Thomas made allegedly injurious and slanderous statements to entities in Colorado

involved in assessing Plaintiff’s medical credentialing or certification in Colorado,

knowing that Plaintiff was living in Colorado and attempting to practice medicine there. 

Plaintiff has failed to make such a prima facie showing with respect to any other

Defendant in this case, and, in particular, her allegations concerning unidentified

persons allegedly “affiliated with” OSU are insufficient to establish minimum contacts

with Colorado on the part of OSU.27 Thus, under the applicable case law, the Court

finds that Plaintiff has made the requisite showing of minimum contacts as to Defendant

Thomas only.

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28TH Agriculture, 488 F.3d at 1287.

29See 4 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1067.2 (3d ed.

2002) (after the plaintiff has made a prima facie showing of minimum contacts, “it becomes the

defendant's burden to convince the court that the assertion of personal jurisdiction would be

unreasonable.”).

8

With respect to the second step of the personal jurisdiction analysis, the parties

have not mentioned the five factors, set forth above, which must be weighed to

determine whether the “exercise of personal jurisdiction offends traditional notions of fair

play and substantial justice.”28 Defendants, the moving parties here, cannot prevail on

their argument that the Court lacks personal jurisdiction over Defendant Thomas without

addressing the factors which determine the resolution of the second prong of the

personal jurisdiction analysis.29 The Court concludes, based upon the present motion,

that it has personal jurisdiction over Defendant Thomas only. 

B. Venue

Defendants also contend that venue is improper in this judicial district. 28 U.S.C.

§ 1391(b) provides: 

A civil action wherein jurisdiction is not founded solely on

diversity of citizenship may, except as otherwise provided by

law, be brought only in (1) a judicial district where any

defendant resides, if all defendants reside in the same State,

(2) a judicial district in which a substantial part of the events

or omissions giving rise to the claim occurred, or a

substantial part of property that is the subject of the action is

situated, or (3) a judicial district in which any defendant may

be found, if there is no district in which the action may

otherwise be brought.

Additionally, claims brought under Title VII are properly venued in:

any judicial district in the State in which the unlawful

employment practice is alleged to have been committed, in

the judicial district in which the employment records relevant

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3042 U.S.C. § 2000e-5(f)(3).

31Plaintiff’s Response (Doc. No. 17) at 5-6. The Court notes that Plaintiff in fact has pleaded only

one claim for Retaliation.

3289 F. Supp. 2d 45 (D.D.C. 2000).

33Id. at 46 n.3.

9

to such practice are maintained and administered, or in the

judicial district in which the aggrieved person would have

worked but for the alleged unlawful employment practice, but

if the respondent is not found within any such district, such

an action may be brought within the judicial district in which

the respondent has his principal office.30

Plaintiff states in a wholly conclusory fashion that “Plaintiff’s claims of wrongful

retaliation all occurred in Colorado,”31 but provides no supporting legal authority for, or

further elaboration on, this statement. The Court has not located any controlling

authority directly on point; however, in Johnson v. Washington Gas Light Co.,

32 the

United States District Court for the District of Columbia indicated that “[t]he

discriminatory activities, retaliation, and reprisal [of] which the Plaintiff has complained”

occurred, for purposes of Title VII’s venue provision, not where the defendant was

working at the time, but, rather, where the allegedly discriminatory employment decision

was made.33 Further, in this case, Plaintiff claims retaliation based upon her

employment in, and alleged protected conduct in, the state of Ohio. The Court is not

persuaded on this motion that the allegedly unlawful retaliation occurred in Colorado, as

opposed to Ohio. None of the other bases for venue set forth in 42 U.S.C. § 2000e5(f)(3) or 28 U.S.C. § 1391(b) are present here, and Plaintiff does not even address

venue with respect to any claim other than her retaliation claim. The Court grants

Defendants’ motion as to improper venue. 

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34See 28 U.S.C. § 1406(a).

10

C. Transfer 

When a court concludes that venue is improper, it may dismiss the action or, in

the interests of justice, transfer it to a district in which venue is proper.34 Plaintiff

requests that, if the Court finds personal jurisdiction or venue to be lacking, this action

be transferred to the United States District Court for the Southern District of Ohio, rather

than dismissed, since if the action is dismissed Plaintiff will not be able to re-file her Title

VII claims in Ohio because the applicable limitations period will have expired. 

Defendants themselves request, in the alternative, that this action be transferred to the

United States District Court for the Southern District of Ohio, Eastern Division. In the

interests of justice, pursuant to 28 U.S.C. § 1406(a), the Court will transfer this case to

the United States District Court for the Southern District of Ohio, Eastern Division,

where it is properly venued. 

Accordingly, for the reasons set forth above, it is

ORDERED that Defendants’ Motion To Dismiss (Doc. No. 5) is granted to the

extent that it requests transfer of this case to the United States District Court for the

Southern District of Ohio, Eastern Division. It is

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11

FURTHER ORDERED that this action hereby is transferred to the United States

District Court for the Southern District of Ohio, Eastern Division pursuant to 28 U.S.C. 

§ 1406(a). 

DATED at Denver, Colorado, this 4th day of October, 2010.

BY THE COURT:

____________________________________

ZITA LEESON WEINSHIENK, Senior Judge

United States District Court

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